Attorney General Merrick Garland on Friday named longtime federal prosecutor Jack Smith special counsel to oversee two Justice Department probes of Donald Trump and determine whether he should be indicted.
Smith will now oversee two ongoing federal investigations into Trump’s involvement in the violent Jan. 6 attack on the Capitol and his storage of highly sensitive materials at his Mar-a-Lago residence in Florida.
Smith, who is anything but a household name, is well-known within legal circles as a “scrappy… no-nonsense, hard-charger,” as former U.S. Attorney Barbara McQuade told MSNBC shortly after the announcement.
Smith also appears to be a veteran of navigating highly charged situations. He has overseen war crimes investigations at the International Criminal Court, led the Justice Department’s public integrity unit, been appointed the first assistant U.S. Attorney for the Middle District of Tennessee, and, most recently, served as a war crimes prosecutor at The Hague. In fact, Garland said Smith was flying back from that post to accept his appointment as special counsel.
McQuade took his appointment as a sign the department’s investigations into Trump have taken a serious turn.
“The one thing I find most significant,” she said, “is you don’t need to appoint a special counsel just to decline a case. You don’t call in a Jack Smith, someone with incredible credentials, incredible reputation, pull him out of The Hague to do this work, unless you think there is a very high likelihood that one of these cases is going to result in charges. So that’s my read.”
McQuade’s take was shared by some other legal observers. Former federal prosecutor and legal analyst Renato Mariotti tweeted, “If Merrick Garland didn’t think there was a serious possibility that Trump would be indicted, he wouldn’t have appointed a special counsel.”
Mariotti added that Garland “didn’t appoint Jack Smith to wind down these investigations.”
While some legal observers wished Garland had simply made the call himself, Smith was generally embraced as a good choice for the job. Notably, he has not been charged with recreating the work already undertaken by Justice Department prosecutors.
“Jack Smith is a solid pick,” tweeted Joyce Vance White, a law school professor and MSNBC legal analyst. “His experience as specialist prosecutor for Kosovo suggests he can move into a serious, difficult ongoing investigation, run with it, & indict cases that should be indicted.”
Highly regarded constitutional law scholar Laurence Tribe said he could think of “no one better suited” for the job, and former member of the Mueller team Andrew Weissmann added that Smith is a “very aggressive prosecutor who represents the best of the Department.”
If the Justice Department ultimately does indict Trump, it will be ugly no matter who pulls the trigger. No amount of separation between a Biden-appointed attorney general and the career prosecutor who made the call will assuage Trump supporters.
That said, there’s a case to be made that by virtue of not being a political appointee, Smith will be better situated to make a decision based on the evidence alone. His appointment could also add an extra layer of transparency. If Smith recommends indicting Trump, and Garland then rejects that determination, Garland will be required to explain that decision to the public.
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